Populist Prosecutorial Nullification

74 Pages Posted: 16 Apr 2020 Last revised: 12 Nov 2020

See all articles by Kerrel Murray

Kerrel Murray

University of North Carolina School of Law

Date Written: November 11, 2020


No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to categorically refuse to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When can a single actor legitimately render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

Keywords: Populism, Jury, Prosecutor, Nullification, Non-enforcement, Democracy, Subsidiarity, Localism, Jury Nullification, Prosecutorial Nullification, Progressive Prosecutor, Progressive Prosecution, Krasner, Rollins

Suggested Citation

Murray, Kerrel, Populist Prosecutorial Nullification (November 11, 2020). UNC Legal Studies Research Paper, New York University Law Review, 96 N.Y.U. L. REV., Forthcoming, Available at SSRN: https://ssrn.com/abstract=3542575

Kerrel Murray (Contact Author)

University of North Carolina School of Law ( email )

102 Ridge Road
Chapel Hill, NC 27514
United States

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